Gastanaga: Civil liberties and (not or) reform

By Claire Guthrie Gastañaga, ACLU of Virginia Executive Director (As originally published in The Roanoke Times;January 30, 2014 )

As countless Virginians can attest, Virginia's mental health system needs serious reforms. We applaud the Virginia General Assembly for its focus on finding ways to ensure that the commonwealth responds effectively to the needs of people with mental illnesses and psychiatric disabilities, particularly in emergency circumstances and in rural areas.
As testimony has shown, the commonwealth is failing people and families who need its support. It's time for the General Assembly to take effective, constitutionally sound steps to get people and families the services they need.
Unfortunately, it is easier to define the problems with our mental health system as a process issue with simple fixes, such as changing time limits and procedures to allow individuals to be held longer without a hearing. In reality, however, the problem is a services issue, exacerbated by the failure to fund and provide appropriate mental health services distributed appropriately across all regions of the commonwealth.
Fortunately, a path exists to ensure an effective mental health system and protect the civil liberties of Virginians with mental illnesses and psychiatric disabilities.
A properly administered and adequately funded system of mental health services is a requirement of civilized society. Such a system can and must respect due process and the privacy rights of people with mental disabilities. No Virginian should ever be treated as a criminal simply because of his or her mental disability, particularly when the commonwealth is not providing adequate funding for mental health facilities and for appropriate secure transportation to those locations.
By providing better access to appropriate services, the commonwealth can prevent crises and make involuntary detention unnecessary.
Until such time, the existence of involuntary civil commitment and other types of temporary custody may be a sad necessity. Such processes must never be used, however, to detain anyone for any length of time simply because of his: 1. exercise of constitutional rights; 2. perceived nonconformity or social deviance; 3. unpopular political expression; or 4. irritation of family, community or public officials.
Involuntary civil commitment and other forms of custody should be utilized only as a last resort. Psychiatric disability cannot by itself be a justifiable reason for depriving a person of liberty against his or her objection, unless it has been judicially determined that an individual is a danger to self or others, and no other less restrictive, alternative environment is suitable.
All other possible options to involuntary custody should be considered and eliminated before a decision is reached.
Furthermore, no person should be involuntarily held without having been offered a full and free opportunity to become a voluntary patient without the use of coercion, and no person should be held against his or her will longer than needed to assess the person's medical and mental condition.
If placed in custody, individuals should be held in the least restrictive environment and only for evaluation by qualified medical professionals. In no circumstances should a person be treated as a criminal and held in a jail or prison simply because of a mental illness or psychiatric disability.
It is an unjustifiable deprivation of liberty to detain an individual for any extended period in a facility that is not properly staffed and equipped to provide a meaningful medical evaluation and, if necessary, treatment.
Due process requires that individuals in custody have an attorney at every step of the judicial process and full opportunity to communicate with the attorney and medical professionals to prepare for judicial proceedings and to make an informed defense against involuntary commitment. They must receive advance written notice of judicial proceedings, possess the right to be present at such proceedings, and have access to all records relevant to their case.
The focused determination of Virginia's legislators to find the right solutions to the critical issues facing the commonwealth's mental health system is commendable. The ACLU of Virginia supports their efforts and will continue to seek to ensure that the solutions identified offer both effective and appropriate services to families and individuals and protect Virginians' civil liberties.